A Lawless Europe? Poland on a collision course with the EU (including Germany)

German-Polish European BLOG

A Lawless Europe? Poland on a collision course with the EU (including Germany)

5 October 2017

Poland has never had worse relations with the European Commission, the European Parliament and Germany since its accession to the EU. The key problem is the undermining of the rule of law by the Polish government.

Adam Balcer *

The tensions between Poland and the EC started immediately after the victory of the Law and Justice Party in the Autumn 2015 elections. In January 2016, the European Commission made the unprecedented decision to initiate the procedure to monitor the rule of law in Poland. This was based on the judgment of the prestigious Venice Commission consisting of a group of recognised legal authorities. It evaluated the Polish government’s policy towards the Constitutional Court and criticised it almost unanimously (132 for, with one Hungarian lawyer against). The Law and Justice government had argued that the evaluation was groundless and that the measures taken by the EC against Poland were unlawful. Moreover, the Polish government undertook an uncompromising stance in its dialogue with the European Commission by rejecting any concessions, opting for confrontational rhetoric, and intensifying legal “reforms”. This meant that the issue of how the rule of law was functioning in Poland not only failed to die down in Brussels, but became even more of an issue.

The European Commission made the unprecedented decision to initiate the procedure to monitor the rule of law in Poland. This was based on the judgment of the prestigious Venice Commission consisting of a group of recognised legal authorities. It evaluated the Polish government’s policy towards the Constitutional Court and criticised it almost unanimously (132 for, with one Hungarian lawyer against).

In consequence, the EC brought the question of the rule of law not being complied with in Poland up for discussion for the first time in the forum of the European Council during the meeting of European ministers in May 2017. During the first exchange of views, 17 countries, including France, Germany, Italy and Spain, expressed critical opinions of the internal situation in Poland. Only Budapest supported Warsaw. Poland remained even more lonely during the second discussion in the European Council which took place at the end of September.

Furthermore, the situation in Poland was the subject of debate in the European Parliament four times in 2016. The European Parliament voted with great majorities twice, in April and then in September 2016, in favour of resolutions calling for Poland to be punished if the government in Warsaw failed to apply the recommendations of the EC. It was an exceptional situation for the internal politics of one country to be so frequently the subject of debate and votes in the European Parliament.

Towards the end of July 2017, the European Commission adopted the third consecutive set of recommendations on the rule of law in Poland. The Commission determined that the government in Warsaw had failed to take action to counter the objections contained in the previous two sets of recommendations concerning the Constitutional Tribunal. The July recommendations also mentioned the four bills passed by the Polish parliament which heralded profound changes in the judiciary. Two of these were vetoed by the president who presented new – and, again, partly unconstitutional – projects in the autumn. However, he did sign the remaining two. Also in July, the European Commission launched two procedures against Poland concerning the violation of EU law. Within one of these procedures, the EC filed a case against Poland to the EU Court of Justice. The court’s preliminary verdict upheld the Commission’s position.

It was an exceptional situation for the internal politics of one country to be so frequently the subject of debate and votes in the European Parliament. [..] the Polish government did not apply the verdict of the EU Court of Justice. This is unprecedented in the whole history of the EU.

The dismantling of the rule of law in Poland contributed to a substantial deterioration of German-Polish relations. Initially, Angela Merkel and the leading politicians in Germany were cautious in their comments on the situation in Poland, being convinced that harsh criticism from Berlin could bring negative consequences because of the bitter historical legacy (German occupation of Poland). However, in May 2017 when Emmanuel Macron assumed the presidency in France, Angela Merkel joined his criticism of Poland, emphasizing that “we must be able to speak openly if we do not agree with certain processes.” In August she became even more outspoken. One day after the Polish government again dismissed the EC inquiry as groundless, the German chancellor said she was taking the Commission’s worries very seriously. “This is a serious issue because the requirements for cooperation within the European Union are the principles of the rule of law. […] However much I want to have very good relations with Poland […] we cannot simply hold our tongues and not say anything for the sake of peace and quiet.”

Initially, Angela Merkel and the leading politicians in Germany were cautious in their comments on the situation in Poland, being convinced that harsh criticism from Berlin could bring negative consequences because of the bitter historical legacy (German occupation of Poland). However, in May 2017 when Emmanuel Macron assumed the presidency in France, Angela Merkel joined his criticism of Poland.

The undermining of rule of law in Poland has created a legal matrix. As Adam Bodnar rightly points out “The [Constitutional] Court exists and the Constitution has formally not been changed. However, the Court is without a real power of judicial review and is not any longer reliable in protecting constitutional principles and rights. As Ombudsman, I receive letters from citizens asking for help, but at the same time warning that I should not go to the Constitutional Court. They are afraid of the result that may put them in a position worse than before the start of constitutional adjudication. They still believe in common courts.”

However, the situation in Poland has wider European ramifications. Kai Olaf Lang stresses that “If the EU remains permissive to democratic irregularities among its members, it risks the proliferation of de-democratization toward the other states of the community, it weakens its capability to act as a normative actor internally and externally, and it agrees to the concept of a loose conglomerate rather than a genuine political union. On the other hand, if the EU evolves toward more democratic strictness and the sanctioning of democratic non-compliance, this increased normative solidity could lead to a point where a country might be in a position of frozen membership or even prefer to “leave the club”.”